1. The petitioner No. 1 is a private limited company and owns the two newspapers, namely, “The Sentinel”, an English daily newspaper and “Sentinel”, a Hindi daily newspaper. The petitioner No. 2 is the Manager (F and A) of the petitioner No. 1 company.
2. According to the petitioners, both the above newspapers have wide circulation both within the north eastern region as well as out side the region. Both the newspapers are registered with the Registrar of Newspapers for India and empanelled with the Directorate of Advertising and Visual Publicity (DAVP) under the Ministry of Information and Broadcasting, Government of India.
3. At the time of filing of the writ petition, “The Sentinel” used to be published simultaneously from Guwahati, Dibrugarh, Silchar and Shillong and has distribution and advertisement offices in various places in India. Since its inception in the year 1983, “The Sentinel” has been drawing the attention of the reading public to various issues of public importance and have published news items and articles in a fair, honest and balanced manner based on investigative journalism. The same has received the appreciation of the reading public. Over the years, “The Sentinel” has been successful in bringing to light various scandals and scams. However, in doing so, it has always abided by the guidelines laid down by the Press Council of India and it has never been communicated with any adverse remark by the Press Council pertaining to any of its publication.
4. According to the petitioners, at the time of filing the writ petition, “The Sentinel” had a circulation of about 57,406 per issue. Every issue of the “The Sentinel” brings out a minimum of 16(sixteen) pages. In addition to its regular issues, “The Sentinel” also brings out weekly supplements.
5. Like “The Sentinel”, the Hindi daily newspaper “Sentinel” is also a widely circulated popular Hindi newspaper published simultaneously from Guwahati and Dibrugarh. Since its inception in the year 1989, it has been successful in bringing into the public domain various issues of public importance which have earned the appreciation of the reading people. Like its English counter part, the Hindi “Sentinel” has also been successful in exposing various corruption cases and scandals concerning the Government and its agencies. While carrying out its investigative journalism, it has always abided by the guidelines of the Press Council of India and has never been communicated with any adverse remark by the Press Council. At the time of filing the writ petition, Hindi “Sentinel” had a circulation of about 21,658 per issue. Every issue had a minimum of 12 pages. In addition, the Hindi “Sentinel” also brings out two numbers of weekly supplements.
6. The North East Frontier Railway (N.F. Railway) releases advertisements to different newspapers empanelled with the DAVP on the basis of the policy guidelines issued by the Railway Board from time of time. The Railway Board consolidated all the instructions and guidelines relating to advertisements in print media and the same was circulated as the advertising policy of Railways vide the Railway Board’s letter bearing No. 2006/PR/5/62, dated 30-5-2007.
7. The DAVP is the nodal agency of the Government of India for advertising. The empanelment of newspapers and the rates of advertising for various publications are done by the DAVP. The Hindi daily “Sentinel” had entered into a rate contract with the DAVP on 27-2-2007 for the period from 1-1-2007 to 31-12-2009 whereby the rate per Sq. cm. was fixed at Rs. 8.09. Similarly, the English daily newspaper “The Sentinel” had also entered into a rate contract with the DAVP on 2-2-2008 for the period from 1-1-2008 to 31-12-2009 whereby the rate per Sq. cm. was fixed at Rs. 14.25.
8. Based on the consolidated guidelines as noted above, the DAVP formulated the new advertisement policy with effect from 2-10-2007 and is guided by the same in the matter of release of Government advertisements.
9. According to the petitioners, for the last many years, the N. F. Railway authorities i.e. respondent Nos. 3 and 4, particularly the respondent No. 4, had been issuing advertisements to the aforesaid two newspapers regularly at the DAVP rates. But, most surprisingly, the N.F. Railway authorities stopped issuing railway advertisements to the English newspaper “The Sentinel” from the month of October, 2006 and the Hindi daily newspaper “Sentinel” from the month of November, 2006. No reasons were given or indicated for the sudden stoppage of advertisements.
10. “The Sentinel” has an online grievance cell where people can express and share their grievances. On the basis of one such complaint against the N.F. Railway and after due verification, “The Sentinel” published a news item on its issue dated 28-8-2006. The substance of the said news item was the nightmarish experience faced by the passengers of Coach No. 00140, Boggy No. AS-3, AC three-tier of 5628 Trivandrum Express, who had boarded the train at Guwahati on 12-7-2006. The said news item, placed on record as annexure-5 to the writ petition, depicted the inadequate service provided by the railway authorities or rather the complete lack of basic service in that train. Thereafter, the respondent No.4 issued a rejoinder concerning the said news item and that was published in “The Sentinel” in its issue dated 02.09.2006.
11. The petitioners believe that it was after the publication of the said news item that the N. F. Railway authorities stopped issuing advertisements to the two newspapers as indicated above. Though the aforesaid two newspapers continued to be empanelled with the DAVP and the DAVP has been releasing other Central Government advertisements to the said newspapers, the N. F. Railway authorities without any reason has withheld issuing railway advertisements to the said two newspapers w.e.f. October and November, 2006 respectively.
12. The petitioners claim that they had approached the railway authorities in this regard but without success. Finally, the petitioners sent a lawyer’s notice dated 16.03.2007 to the respondent Nos. 3 and 4 calling upon the said respondents to allot advertisements to the two newspapers adequately at par with that of similar newspapers. The said lawyer’s notice neither received any reply nor any advertisement was issued to the aforesaid two newspapers thereafter.
13. The petitioners filed an application on 15.11.2007 before the Public Information Officer of the N. F. Railways under the Right to Information Act, 2005 seeking a copy of the advertisement policy based on which the advertisements are released to the newspapers of the North Eastern Region. In his letter dated 14.12.2007, the respondent No.4 stated that the N. F. Railways releases advertisements to different newspapers empanelled with the DAVP and the N. F. Railways on the basis of policy guidelines issued by the Railway Board from time to time and that there is no separate policy for issuing advertisements to the newspapers of North Eastern Region. It was further stated that the Railway Board had consolidated all instructions and guidelines in its letter No.2006/PR/5/62 dated 30.05.2007, which serves as the policy guidelines for issuing advertisements to newspapers and periodicals by the N. F. Railways.
14. As the aforesaid two newspapers were continued to be deprived of advertisements by the N. F. Railway authorities, the petitioners have filed the present writ petition for declaring such action of the N. F. Railway authorities i.e. respondent Nos.3 and 4 in not releasing advertisements to the aforesaid two newspapers w.e.f. October and November, 2006 respectively as arbitrary, unreasonable, discriminatory, illegal and unconstitutional and for a direction to the said respondents to release advertisements to the said newspapers at par with that of similar category newspapers. The petitioners have also prayed for other connected reliefs.
15. One, Sri Dinesh Kumar Gupta, Deputy General Manager (G) has filed an affidavit on behalf of the respondents. While generally denying the allegations made by the petitioners, the respondents in their counter affidavit have contended that the basic thrust of the policy guidelines on advertising is to secure the widest possible coverage at the best price and that release of advertisements are not intended to be financial assistance to the newspapers and periodicals. Therefore, the attempt is always to get maximum possible coverage at minimum cost and in most of the cases, the newspapers with greater circulation can provide better coverage. Stating that the railways do not allot or issue advertisements to newspapers but instead buy space therein at rates specified by the DAVP, it is contended that buying space for advertisements is a commercial activity and is, therefore, governed by business principles.
16. The respondents have stated that “The Sentinel” has a circulation of 46,354 as per the rate contract with the DAVP. Two other newspapers published from Guwahati, namely, The Telegraph and The Assam Tribune have circulation of 62,195 and 54,436 respectively as per the rate contract with the DAVP. The Telegraph charges Rs. 15.26 per sq. cm. of space whereas the Assam Tribune and “The Sentinel” have the same rate of Rs. 14.25 per sq. cm. Therefore, according to the respondents, by spending the same amount of money or by spending slightly more money, one can get more circulation of one’s advertisements in The Assam Tribune or The Telegraph.
17. Similarly, the respondents have stated that the Hindi “Sentinel” has a circulation of 15,288 as per the rate contract with DAVP and it charges Rs. 8.09 per sq. cm. On the other hand, Dainik Purboday, another Hindi daily published from Guwahati has a circulation of 18,063 and charges the same rate for advertisements i.e. Rs. 8.09 per sq. cm. Again, Purbanchal Prahari, a Hindi dialy published from Guwahati, has a circulation of 13,315 and charges Rs. 6.19 per sq. cm. Making a comparison between the aforesaid rates, the respondents have contended that it is possible to get the widest possible coverage if one advertises in either the Dainik Purboday or the Purbanchal Prahari.
18. Though the respondents have alleged that “The Sentinel” published the news item in question without verifying facts, they have however stated in paragraph-10 of the counter affidavit that the reasons for not advertising in the two newspapers is the irregularities committed by “The Sentinel” and the Hindi “Sentinel”. In support of the said submission, the respondents have referred to a few instances where they claimed that the two newspapers had submitted more than one bill in respect of the same advertisement for which payment had already been made. The aforesaid instances were of March- 2002, July-2005 and September-2005. Another reason advanced is that advertisements meant for Hindi “Sentinel” were publishedin “The Sentinel” and vice versa. In this regard, five instances have been given but those were of February and May, 2005.
19. Interestingly, the respondents have made a statement in the counter affidavit denying that the N.F. Railway authorities stopped buying space in the two newspapers after publication of the news item. On the other hand, it is categorically stated that the N.F. Railway authorities had expressed the intention to buy space in the two newspapers for publication of advertisements therein on many occasions but the said newspapers refused to publish the advertisements of the N.F. Railways. In this connection, the respondents have also stated that the two newspapers did not submit bills for a number of advertisements released to the two newspapers for the months of August, September and October, 2006. According to the respondents, it was because of these irregularities that the N.F. Railways had stopped buying space in the two newspapers.
20. In the rejoinder affidavit, the petitioners have stated that the N.F. Railway authorities stopped issuing advertisements to the two newspapers without issuing any show cause notice and without giving any opportunity of hearing to the petitioners. Even the lawyer’s notice was not responded to. The petitioners have reiterated their contention that for the last several years the N.F. Railways had released advertisements to the two newspapers on regular basis but only after publication of the news item on 28-8-2006 in “The Sentinel”, the N.F. Railways stopped releasing advertisements to the two newspapers with effect from October, 2006 and November, 2006 respectively.
21. Regarding the irregularities alleged in paragraph-10 of the counter affidavit, the petitioners have stated that it is for the first time that the respondents have raised these issues. The petitioners were never intimated about any such irregularities as alleged and no notice or show cause was issued to them in this regard at any point of time. On the other hand, the N.F. Railway authorities continued to release advertisements to the two newspapers till the months of September and October, 2006 respectively. The petitioners have stated that information furnished under the Right to Information Act, 2005 by the N.F. Railway authorities disclosed that there is no record of any correspondence between the officers of the N.F. Railways regarding release of advertisement to the two newspapers. Therefore, the petitioners have contended that the reasons given in the counter affidavit are not the reasons for withholding the advertisements to the two newspapers. The petitioners have also denied the contention of the N.F. Railway authorities that they had expressed intention to buy space in the two newspapers for publication of railway advertisements. On the contrary, the petitioners have pointed out that in spite of the lawyer’s notice, the respondents did not release any advertisement to the two newspapers. The petitioners have also categorically denied that the two newspapers had refused to publish advertisements of the N.F. Railways. Denying the allegations of commission of irregularities, the petitioners have stated that the respondents never raised any complaint against the two newspapers and continued to release advertisements till the publication of the news item on 28-8-2006.
22. The petitioners have stated that from the statistics made available by the N.F. Railway authorities for the period from 2003-2004 to 2007-2008, as many as 31 newspapers printed and published from Assam received advertisements from the N. F. Railways and on the basis of the calculation made by the respondents themselves, the two newspapers cannot be deprived of their entitlement to get advertisements. Asserting that both the aforesaid newspapers fulfill all the required norms as per the advertising policy of the railways, the petitioners have contended that the action of the respondent Nos. 3 and 4 in withholding advertisements to the two newspapers is discriminatory and violative of Articles 14 and 19(1)(a) of the Constitution. The respondents are duty bound to give equal treatment to the two newspapers with similarly situated newspapers, asserts the petitioners.
23. On 7-5-2008, this Court had issued notice. Thereafter, on 15-9-2009, the case was admitted for final hearing. Subsequently, by an order dated 26-10-2009 passed by this Court in Misc. Case No. 2637 of 2009, the names of two parties initially arrayed as respondent Nos. 2 and 3 were struck off and the list of respondents was re-arranged whereafter the respondent Nos. 3 and 4 were so designated though initially they were the respondent Nos. 5 and 6.
24. I have heard Mr. P.K. Goswami, learned Sr. counsel assisted by Ms. U. Bhattacharjee, learned counsel for the petitioners. None appears for the respondents. However, the written argument submitted on behalf of the respondents on 16- 8-2011 has been considered.
25. Mr. Goswami, learned Sr. counsel submits that the impugned action of the respondent Nos. 3 and 4 in stopping release of advertisements to the two newspapers belonging to the petitioner No. 1 with effect from October and November, 2006 respectively is a direct fall out of the publication of the news item in the newspaper “The Sentinel” on 28-8-2006. Stating that the clarification issued by the N. F. Railway authorities was promptly published, Mr. Goswami submits that the N.F. Railway authorities cannot act in such a vengeful manner. The learned Sr. counsel further submits that being a State instrumentality, the N. F. Railways cannot act in a manner which offends Articles 14 and 19(1)(a) of the Constitution of India. He submits that the impugned action smacks of vindictiveness and is an assault on the freedom of the press. Referring to the various provisions of the advertising policy of the railways including the new advertisement policy, the learned Sr. counsel submits that the reasons given by the respondents to justify withholding of the advertisements to the newspapers are no reasons at all and that because of the said alleged irregularities, which were never brought to the notice of the two newspapers and which were of the years 2002 and 2005, the respondents could not have resorted to such unlawful and discriminatory steps. Terming the impugned action as wholly unconstitutional, Mr. Goswami has prayed for an appropriate intervention of this Court in the exercise of its powers under Article 226 of the Constitution. In support of his submissions, Mr. Goswami has placed reliance on a number of decisions which will be considered in the course of this judgment.
26. The written argument submitted on behalf of the respondents are more or less on similar lines with the counter affidavit filed by the said respondents. Comparing the circulation of the newspapers along with the circulation of other newspapers, the respondents have contended that it is possible to get the widest possible coverage at optimum cost if one advertises with The Assam Tribune or The Telegraph in respect of the English language newspapers and if one advertises with the Dainik Purboday or Purbanchal Prahari in case of the Hindi language newspapers. Referring to the irregularities committed by the two newspapers, the respondents submitted that it was because of those irregularities that the N.F. Railway authorities stopped buying advertising space in the two newspapers. However, like in the counter affidavit, the respondents have made a clear statement in the written argument as well that the N.F.Railway authorities had expressed the intention to buy space for publication of advertisements in the two newspapers on many occasions and because of the rate contract between the DAVP and the petitioners, the question of stopping advertisements by the respondents in the two newspapers does not arise.
27. The Constitution of India does not use the expression freedom of the press but the Apex Court has declared in a series of judgments that the freedom of the press is included in Article 19(1)(a) of the Constitution which guarantees to all the citizens of this country the right to freedom of speech and expression. In (1985) 1 SCC 641 ( Indian Express Newspapers (Bombay) Private Ltd. and others Vrs. Union of India and others and other cases), the Supreme Court was considering the challenge made to the imposition of import duty on newsprint imported from abroad under the Customs Act, 1962 and other related issues. In that case, the Supreme Court observed that the freedom of the press is one of the subjects around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail. Such freedom has been attained at considerable sacrifice and sufferings. The Supreme Court further observed that in today’s free world, freedom of the press is the heart of social and political intercourse. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.
28. From a critical study of the judgments of the Apex Court over the years, it can safely be concluded that the Apex Court has consistently pronounced very strongly in favour of the freedom of the press. The Apex Court has firmly expressed the view that there cannot be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19(2) of the Constitution. To many, perhaps the time has come after 62 years of the Republic to have a re-look at even the reasonable restrictions as appearing in Article 19(2), not with a view to expand its scope but to gradually taper it off so as to ensure complete free play of the said freedom. It may not be out of place to mention herein what Pandit Jawaharlal Nehru had said: “ I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press” (quoted by the Apex Court in Indian Express (supra) from D.R. Mankekar : The Press under Pressure).
29. News items and articles published in the newspapers have to be critical of such actions of the Government and its agencies or of any other authority in the public domain if those are not in the public interest. Dissemination of news and views and the freedom to discuss the same in an unrestricted and untrammelled manner is the bedrock of a liberal democratic society. Any attempt to stifle such a debate cannot be countenanced.
30. In the Sakal Papers Vs. Union of India; reported in AIR 1962 SC 305, the Supreme Court had stated that the freedom of speech and expression guaranteed by Article 19(1)(a) gives a citizen the right to propagate and publish his ideas to disseminate them, to circulate them either by words of mouth or by writing and this right extends not merely to the matter it is entitled to circulate but also to the volume of circulation.
31. Over the years, the Government and its agencies have divised various ingenuous methods to muzzle the press. One of the commonly used methods is the reduction in the release of Government advertisements in the offending newspaper or stopping of such advertisements altogether.
32. A newspaper not only sustains itself from its sale proceeds but also from the revenue generated through advertisements. Therefore, advertisements play a very crucial role in the overall viability of a newspaper. Government advertisements, including advertisements by Government agencies, form a major portion of a newspaper’s advertisements. If these are reduced or stopped altogether, it will increase the financial burden on the newspaper. Thereby either the newspaper will be forced to increase the price which may in turn cause reduction in the circulation and ultimately lead to the closing down of the newspaper or compel it to seek Government assistance to survive, thereby yielding to the pressure of the Government.
33. In the case of Bennett Coleman and Co. and Ors. Vs. Union of India (UOI) and Ors; reported in AIR 1973 SC 106, the Apex Court examined the co-relation between withholding of advertisements and the freedom of press. The Apex Court noted that if advertisement is restricted, the price of the newspaper goes up. If the price goes up, the circulation will go down, thus having a direct bearing on the viability of the newspaper itself. Paragraph-34 of the said judgment, which is relevant for our present purpose, is quoted hereunder:
“34. Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and views and advertisements which are to be published and circulated. The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Papers case(supra) to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of propagation, publication and circulation.”
34. A Division Bench of this Court in the case of Dainik Sambad and another Vrs. State of Tripura and Others; reported in 1988 (I) GLJ 486 held that discriminatory allotment of advertisements to different newspapers of the same category by the Government will impair the freedom of the press and will be violative of Articles 14 and 19(1)(a) of the Constitution of India. Such an action can be subjected to a judicial scrutiny in the exercise of the power of judicial review.
35. Again a Division Bench of this Court in the case of the present petitioners themselves reported in (1995) 1 GLT 71, (State of Assam and Ors Vrs. M/s. Omega Printers and Publishers Pvt. Ltd.), after surveying the law laid down by the Apex Court in this regard, observed that if these assistance (advertisements) from the Government are curtailed, it may bethat the newspaper will not be able to withstand the competition and in the long run it may die down. The necessary corollary which follows is that such an action of the Government would directly affect the freedom of speech and expression to which the newspaper is entitled. The Division Bench further observed that even in matters regarding giving of advertisements, the Government has to act on settled principles and cannot violate the fundamental rights guaranteed under Articles 14 and 19 of the Constitution.
36. In another case, also relating to the issue of advertisements in newspapers, this Court in the case of Sushil Choudhury and Another Vrs. State of Tripura and Others; reported in AIR 1998 Gau. 28 expressed the clear view and opinion that if the State respondents continued to allot 24% of the total quantum of advertisements to the newspaper the Daily Desher Katha as compared to only 6% of the total quantum of advertisements to other similar category newspapers, it will result in increased publication and circulation of the Daily Desher Katha which will result in more and more people reading the said newspaper. The said newspaper will as a result of its increased circulation influence the community to a much greater extent than the other newspapers and this increased influence of the newspaper on the minds of the people compared to the other newspapers strikes at the very foundation of the press and democracy. Observing that freedom of the press and healthy democracy require that divergent views are expressed through the newspapers and the people reading the newspapers form their opinion on the basis of such divergent views, this Court intervened in the matter by issuing necessary directions.
37. The Privy Council in the case of Hector Vrs. Attorney General of Antigua and Barbuda and others; eported in (1990) 2 All England Law Reports 103; observed that in a free democratic society it is almost too obvious to need stating that those who hold office in Government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism would amount to political censorship of the most insidious and objectionable kind. That was a case arising from Antigua and Barbuda in which the editor of a newspaper was charged in respect of an article published by him with an offence under Section 33B of the Public Order Act, 1972 as amended by the Public Order (Amendment) Act, 1976, which provides amongst others that any person who prints or distributes any false statement which is likely to undermine public confidence in the conduct of public affairs shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding five hundred dollars or to a term of imprisonment not exceeding six months. The Privy Council, while holding such provision as unconstitutional, observed that any statutory provision which criminalizes statements likely to undermine public confidence in the conduct of public affairs has to be viewed with utmost suspicion.
38. Having noticed the broad contours of the law on the subject, let us now turn to the facts of the present case.
39. The letter of the Railway Board dated 30-5-2007 containing the consolidated policy guidelines on advertising in print media clearly says that the Railway Ministry is committed to follow the guidelines of the DAVP in the selection of the publication and the rates of advertising.
40. As per Clause 1.3 of the said advertising policy, advertisements should invariably be released only to the publications which are on the panel of the DAVP and at the rates fixed by the DAVP. As per Clause 6.1, the Railways are required to draw up a comprehensive list of DAVP approved newspapers/periodicals for release of advertisements and as per Clause 6.2, advertisements may be released to these publications on rotation basis to ensure that claims of small and medium newspapers/periodicals are also taken care of. As per Clause 11.1, the advertising agencies and the publications in cases of direct releases should submit the bills within 60(sixty) days of the publication of the advertisement and effort should be made to settle the bills within 60(sixty) days thereafter. As per Clause 7 of the new advertisement policy with effect from 2-10-2007 (Annexure-4 to the writ petition), newspapers/journals are classified into 3(three) categories, namely, (1) Small (with a circulation of up to 25,000 copies per publishing day), (2) Medium ( between 25001 and 75,000 copies per publishing day) and (3) Big (with a circulation of above 75,000 copies per publishing day).
41. Clause 18 thereof deals with suspension and recoveries. Since the said clause has some relevance to the present proceeding, the same is quoted hereunder :
“Clause-18
Suspension and Recoveries: A newspaper may be suspended from empanelment by DG, DAVP with immediate effect if
a) found to have deliberately submitted false information regarding circulation or otherwise; or
b) found to have discontinued its publication, changed its periodicity or its title or have become irregular or changed its premises/press without due intimation; or
c) it has failed to submit its’ Annual Return to the RNI or its’ Annual Circulation Certificate from the prescribed agencies; or
d) indulged in unethical practices or anti national activities as found by the Press Council of India. However, DAVP shall refer the case to the Ministry for appropriate decision in the matter;
e) convicted by Court of Law for such activities;
f) it refuses to accept and carry an advertisement issued by DAVP on behalf of the Ministries/Departments of Government of India, public sector undertakings and autonomous bodies on more than two occasions.
Provided that DG, DAVP shall not issue any order of suspension without giving a reasonable opportunity to the concerned newspaper in cases covered by (a),(b), (c) and (f) above.
In such cases the paper will remain suspended for a period upto 12 months. DAVP will effect recovery of any payments made in the past from the publisher in the case of (a)(b) and (c) above. The publisher should deposit within 60 days from the date of issue of Demand Letter for recovery by DAVP failing which empanelment of the paper will be discontinued with immediate effect without any further notice and recovery will be realized from the bills/payments pending with DAVP, if any. Till the recovery is made, no advertisement will be issued.”
42. It is seen that under Clause 18 a newspaper can be suspended from its empanelment with the DAVP by the Director General of DAVP if any of the 6(six) conditions mentioned therein are attracted. As per the 6th condition, if a newspaper refused to accept and carry an advertisement issued by the DAVP on behalf of the Ministries /Departments of Government of India, public sector undertakings and autonomous bodies on more than two occasions, such a newspaper can be suspended from its empanelment. But before any order of suspension is issued, a reasonable opportunity should be given to the concerned newspaper.
43. In the present case, the respondents have alleged certain irregularities committed by the two newspapers and have stated that they have stopped releasing advertisements because of such irregularities. However, there is nothing on record to show that the two newspapers in question have been suspended by the DAVP. On the contrary, the petitioners have averred on oath that no notice or opportunity was granted to them by the respondents in respect of the mentioned alleged irregularities as is the requirement under Clause 18, which has not been controverted by the respondents. In any case, those alleged irregularities were of the years 2002 and 2005. Long thereafter, the N.F. Railway authorities continued to release advertisements to the said two newspapers. Further more, the petitioners have placed on record the two documents dated 27-2-2007 and 2-2-2008 wherefrom it is evident that the two newspapers stood empanelled with the DAVP.
44. Moreover, the N.F. Railways have themselves disclosed in the information furnished under the Right to Information Act, 2005 that there is no record of any correspondence between their officers regarding release of advertisements to the two newspapers. Therefore, it can be safely concluded that the reasons as given by the respondents for stopping the advertisements to the two newspapers are wholly untenable and cannot justify the impugned action of the respondent Nos. 3 and 4.
45. Considering the circulation of the two newspapers and the criteria fixed by the DAVP, the English Sentinel falls in the medium category along with the Telegraph and the Assam Tribune whereas the Hindi Sentinel falls in the small category along with the Dainik Purboday and Purbanchal Prahari. The advertisement rates of the two newspapers are the contracted rates approved by the DAVP and no grievance can be raised by the N.F Railway authorities on the quoting of such rates by the two newspapers. From the comparative statements placed on record by the petitioners relating to the circulation of the newspapers and periodicals published from Assam and the payments made by the N. F. Railway authorities to various newspapers and publications for release of advertisements for the period from 2003-04 to 2007-08, there appears to be no justification at all on the part of the N.F Railway authorities in stopping release of advertisements to the two newspapers from October and November, 2006 respectively.
46. In view of the discussions made above, I am of the considered view that the N.F. Railway authorities were not justified in stopping release of advertisements to the newspapers, “The Sentinel” and “Sentinel” (Hindi) from October,2006 and November, 2006 respectively. In the facts of the case, there can be no escape from the conclusion that such action of the N.F Railway authorities is illegal and unconstitutional.
47. The N. F. Railway authorities on the other hand have stated in the counter affidavit, which have been reiterated in the written argument, that they had expressed their intention to release advertisements to the said two newspapers and that in view of the contract between two newspapers and the DAVP, the question of stopping advertisements to the two newspapers does not arise. If that be so, let them resume release of advertisements to the two newspapers forthwith.
48. Considering the above, this writ petition deserves to be allowed, which I hereby do. Accordingly, let a direction issue to the N.F Railway authorities i.e. the respondent Nos. 3 and 4 to release their advertisements to the two newspapers, “The Sentinel” and “Sentinel” (Hindi) without any delay as per their category wise entitlements at par with similar category newspapers. Cost quantified at Rs. 10,000/-.